Solomon Ocampo v Wolper Jewish Hospital

[2014] FWC 260

[2014] FWC 260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Solomon Ocampo
v
Wolper Jewish Hospital
(U2013/11622)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 10 JANUARY 2014

Application for relief from unfair dismissal.

[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged with the Fair Work Commission (the Commission) by Mr Solomon Ocampo (the Applicant) against his former employer, Wolper Jewish Hospital, Woollahra New South Wales, (the Respondent).

[2] The matter was the subject of conciliation on 20 August 2013, at which it was not settled, and consequently listed for hearing.

[3] I conducted a programming hearing by teleconference on 24 October 2013.

[4] The matter was heard in Sydney on 5 November 2013.

[5] Further written submissions were made by the Respondent on 11 November and the Applicant on 13 November.

[6] The Applicant was represented by Mr L. Hammond and the Respondent by Mr S. Borrow. I granted both representatives permission to appear pursuant to s.596.

[7] The Applicant relied on oral evidence, the witness statement of the Applicant (Exhibit H1) and written submissions filed on 30 September.

[8] The Respondent relied on oral evidence, the witness statement of Harry Aizenberg (Exhibit B1) the Chief Executive of the Respondent and Penny King, the Director of Nursing at the hospital (Exhibit B2) and written submissions filed on 21 October.

Background

[9] The Applicant was employed as an Assistant in Nursing at the hospital from 30 June 2008 until his dismissal on 21 June 2013.

[10] In his F2 form the Applicant stated the reasons for dismissal were:

● “Incapacity” - he was told by the CEO that he was “costing the hospital a lot of money”.

● He was terminated the day he returned from annual leave despite being under the care of a psychiatrist and psychologist.

● He was bullied and harassed and ultimately dismissed because of his injury which had been originally sustained at work.

[11] The letter of termination signed by Mr Aizenberg stated:

“Dear Solomon,

This is to advise you that following a detailed review of your file we have come to a firm decision that you are unlikely at any time in the near future to be able to fully resume your duties of Assistant in Nursing (“AIN”) because of your incapacity to fulfil the inherent requirements of that role.

You have now been fully supported for over 2 years, substantially engaged in suitable duties roles created to assist you to obtain a return to your pre-injury duties, which regrettably has proven to be unattainable. Suitable duties roles are never intended to be a permanent substitute for your substantive engagement as an AIN.

I note that your first injury occurred on 24 February 2011 and you were unfit for work until 9th April 2011 with suitable duties for 4 hrs per day, three days per week. You appeared to have been making steady progress towards your primary rehabilitation goal until 29 February 2012, when you experienced further injury. You were unfit for any duties until 17th March when you returned to suitable duties for 4 hours per day three days per week. You have slowly progressed to your current status of 8 hours per day, three of which consist of clerical duties, for 4 days per week. There have been a number of occasions when you were absent from duty due to pain in your back.

Current restrictions on your work include a 10 kg lifting limitation, 60 minute sitting limitation, limited squatting and bending, applied since January 2013 suggesting some stabilization of your recovery.

Based on the above, you are consequently unlikely to progress to a stage where you would be capable of carrying out the inherent requirements of your substantive position as an Assistant in Nursing at any time in the near future, if at all.

We have explored the feasibility of offering you permanent alternative work, but are unable to identify any role that may be suitable, having regard to your restrictions and other qualifications.

In view of the foregoing, we believe we are left with no alternative other than to terminate your employment for reason of your incapacity, effective from 21st June 2013. You will be provided with 2 weeks pay in lieu of notice and payment of any accrued statutory entitlements payable to you on termination of your employment.”

[12] The Respondent, in its F3 form stated the reasons for dismissal were:

• As stated in the termination letter quoted above;

• Having discharged its Workers Compensation obligations, the Respondent had a proper basis for terminating the Applicant;

• The alleged bullying issue had been satisfactorily resolved.

Protection from Unfair Dismissal

[13] An order for reinstatement or compensation may only be issued where I am satisfied the applicant was protected from unfair dismissal at the time of the dismissal.

[14] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[15] There is no dispute, and I am satisfied, the Applicant has completed the minimum employment period, is below the high income threshold earning $936.18 per week at the time of dismissal and is covered by an enterprise agreement, the Wolper Jewish Hospital NSWNA/ANF Enterprise Agreement 2011-2014 [AE893491]. Consequently, I am satisfied the Applicant was protected from unfair dismissal.

Was the dismissal unfair?

[16] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Was the Applicant dismissed?

[17] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the Act. Section 386 of the Act provides that:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[18] There is no dispute that the applicant was dismissed. The Respondent has some 86 full-time equivalent employees. The Applicant was provided with two week’s pay in lieu of notice.

Harsh, unjust or unreasonable

[19] Having dealt with each of s.385(a),(c)-(d) of the Act, I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Approach of the Commission

[20] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[21] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) restated the above proposition and also stated:

“In my view whether there has been a `fair go all round’ is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.”

Overview of the Parties’ Arguments

[22] The Applicant submits the dismissal was harsh, unjust or unreasonable because:

• The Applicant had been performing the duties assigned to him by the Respondent which were a mix of clerical duties, following his injury;

• The Respondent was unreasonable in concluding that the Applicant would not be able to resume his normal duties as an Assistant in Nursing. It did not base its decision on medical evidence;

• The Applicant was given no prior notice of the meeting, on the first day of his return from annual leave, at which he was given the termination letter and no proper opportunity to respond;

• There are no allegations relating to the Applicant’s performance;

• The Applicant has been medically unfit for at least eight weeks since the dismissal and is unemployed.

• The Applicant seeks reinstatement and restoration of lost pay or, in the alternative, compensation.

[23] The Respondent submits the dismissal was not harsh, unjust or unreasonable because:

• In the two years and four months prior to the Applicant’s termination, he was not capable of resuming his substantive duties;

• The Respondent reasonably concluded, based on the available medical evidence, that the Applicant could not return to his substantive position;

• There were no permanent alternative roles open to the Respondent for placement of the Applicant;

• Nothing said by the Applicant at the 21 June meeting could rebut the rationale of the Respondent to terminate the Applicant;

• There was no refusal by the Respondent to allow the Applicant to have a support person at the 21 June meeting.

[24] I will now consider each of the criteria contained in s.387 of the Act separately.

Valid Reason - s.387(a)

[25] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench said ‘In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable’.

[26] Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 said:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly ...”

[27] In Parmalat Food Products Pty Ltd v Wililo, (2011) FWAFB 1166, the Full Bench held:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”

[28] The Applicant was dismissed because of the Respondent’s view that he would not be able to fulfil his role as Assistant in Nursing.

[29] The Respondent’s management of its response to the Applicant’s medical issues following his injury in February 2011 is set out in detail in Mr Aizenberg’s statement (Exhibit B1) and its over 80 attachments of medical and workers compensation documents. These were not contested.

[30] I accept that from February 2011 to his termination, the Applicant was never able to return to pre-injury duties and hours.

[31] The Workcover NSW certificate issued prior to the termination certified the Applicant fit for eight hours work per day, four days per week with a limitation on lifting of ten kilograms, sitting tolerance of 60 minutes and limits on squatting and bending (Exhibit B1, Annexure 81). This is accepted by the Applicant at [39] of his witness statement (Exhibit H1).

[32] The evidence of Ms King in Exhibit B2, which I accept, is that the Applicant would not be able to perform at least 50% of the Assistant in Nursing’s normal duties.

[33] Under cross-examination the Applicant conceded:

“No, that’s not the question I asked you. I said if you are not able to carry out your pre-injury duties then you’re not able to carry out the inherent requirements of your pre-injury role. You acknowledge that?---By the time of my termination I was positive and positive that I should be given a chance I can go back to - - -

No, I put a question to you; a specific question. If you can’t carry out your pre-injury duties then you can’t carry out the inherent requirements of that pre-injury role, can you? You acknowledge that? If you’re engaged as an AIN and you can’t do all the duties that are associated with an AIN then you can’t work as an AIN can you? You can only do some parts of it. For example, you might be able to carry out suitable duties. But you’ve acknowledged the suitable duties are only a temporary - only provided to you on a temporary basis to aid your rehabilitation?---Yes.”

[Transcript PN225 - 226]

[34] Of course, it could be argued that the Respondent should have continued to provide the mix of clerical duties to the Applicant that it had done, on a permanent basis. In my view, it would be unreasonable to expect this to be continued indefinitely.

[35] I find therefore that the Respondent had a valid reason, based on the Applicant’s incapacity to carry out his substantive duties, to dismiss him.

Notification of the Valid Reason - s.387(b)

[36] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”   Ibid at 151.

[37] The evidence is clear that the Applicant was not notified of the reason for termination until the 21 June meeting. The decision to terminate had already been made and the letter prepared.

[38] Mr Aizenberg’s evidence in Exhibit B1 was as follows:

“92. The termination of the Applicant’s employment was clearly unrelated to any deficiencies in his work performance or conduct. This was clearly stated in the termination letter forming “Attachment 82” of this Statement.

94. As I did not give the Applicant an opportunity to respond to my decision because it was medical evidence that the decision was based upon. Having the Applicant argue that he was in fact able to perform his duties was not relevant. The medical certificates indicated otherwise. I was obliged to consider the medical evidence rather than the Applicant’s opinion.”

94. I did meet with the Applicant to convey my decision, which was soundly based upon the medical evidence provided through the properly administered rehabilitation process. The Applicant argued that his work capacity had continued to improve, but that palpably contradicts the considered medical assessments forming part of this statement.”

[39] In the circumstances, I find that the applicant was not adequately notified of the reason for his termination before the decision was taken to dismiss.

Opportunity to Respond - s.387(c)

[40] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.

[41] Mr Aizenberg’s evidence was as follows:

“THE DEPUTY PRESIDENT: Thank you. Can I just ask, Mr Eizenberg, [sic] your evidence is that you made the decision to terminate whilst the applicant was on annual leave. Prior to him proceeding on annual leave, I think the evidence is that he was working eight hours a day, four days a week, with a combination of five hours on the ward and three hours clerical per day: what happened in the meantime that meant that that regime couldn't continue, in your view?---My view was crystallised with the RAP report; the work-related activity program, which is the new WorkCover procedure. When I saw the report and then the next medical certificate after that report didn't show any improvement whatsoever so then I made the decision.

Why didn't you give him an opportunity to answer or to deal with the intention to dismiss him?---Mr Ocampo may have a view as to what he is capable of and I think it's been shown that he was doing things that should not have been doing. I wanted to rely on medical evidence rather than what Mr Ocampo felt he could do. I looked at the evidence and all the medical evidence indicated that he had plateaued and after that long period of time he was - didn't have a prospect of returning to pre-injury duties.

But one of the things I have to weigh up under section 387 is - there are a whole range of them and you may not have looked at the section but there are a whole range of matters to look at as to whether a dismissal was harsh, unjust or unreasonable and two of the matters are whether the person was notified of that reason and whether the person was given an opportunity to respond to any reason relating to their capacity or conduct. So it's your evidence that he wasn't given - well, he wasn't notified of the reason and he wasn't given an opportunity to respond. Is that the case?---I think he was notified of the reason but he definitely wasn't given an opportunity to respond. Yes, that's correct.”

[Transcript PN 433 to 435]

[42] Accordingly, I find that the Applicant had no real opportunity to respond to the reason for dismissal.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[43] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[44] There was no evidence that the Applicant requested a support person be present at the 21 June meeting. It is true that he had no warning about the nature of the meeting but I do not place any reliance on this ground.

Warnings regarding unsatisfactory performance - s.387(e)

[45] This is not in issue as the dismissal was for incapacity.

Impact of the size of the Respondent on procedures followed - s.387(f)

[46] The Respondent is a reasonably large, well resourced employer. I find that the size of the Respondent’s enterprise did not impact on the procedures followed in effecting the dismissal.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[47] No dedicated human resources expertise was applied by the Respondent, though it would have been available to it. I find that this contributed to the deficiencies in the process identified above.

Any other matter that the FWC considers relevant

[48] Section387(h) allows the Commission to consider any other matters it considers relevant. These must be considered in the context of the object of Part 3 - 2 of the Act contained in s.381(2) to “ensure that a ‘fair go all round’ is accorded to both the employer and the employee concerned”.

[49] In the circumstances of this case, I find that the Respondent gave insufficient weight in deciding to dismiss the Applicant to the following:

● The impact of dismissal on the Applicant given his state of health;

● His service and work performance and conduct which were not criticised;

● Consideration of alternative work options for the Applicant, although as I have already said, these would have practical limits.

[50] For these reasons, and having considered each of the matters specified in s.387 notwithstanding that there was a valid reason for dismissal, I find that the applicant’s dismissal was harsh, unjust or unreasonable. Accordingly I find the applicant’s dismissal was unfair.

[51] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[52] I have already dealt with the issues at s.390(1)(a)–(b) above. I am satisfied the applicant was protected from unfair dismissal pursuant to s.382 of the Act and the Applicant was dismissed unfairly. Accordingly, I am required to determine whether to order the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if I am satisfied such an order is appropriate in all the circumstances.

[53] Mr Hammond accepted that there are practical difficulties with reinstatement:

“He suffered considerable mental anguish that day, culminating in an attempt on his own life later that day. We are obviously here because that attempt was thankfully unsuccessful. Mr Ocampo commenced these proceedings in the Commission and relies on his statement dated 30 September 2011. He also filed submissions in the Commission in support of his application also on that date and he intends to rely on those submissions. The primary relief that he has sought in his application was reinstatement pursuant to section 391(1). It appears that there may be a practical problem with the Commission in fact awarding Mr Ocampo the primary relief sought in that he continues to be certified as unfit for work. That certification is currently on foot and it is as a result of a severe increase in his depressive illness, brought about by the circumstances of his termination. As alternative relief Mr Ocampo seeks compensation pursuant to section 392 and that's all I have to say for the moment.

THE DEPUTY PRESIDENT: Can you indicate just at the start as to what amount of compensation he is seeking?

MR HAMMOND: Well, I think that it's the applicant's view that an amount of compensation in the order of between 10 to 12 weeks would be appropriate in these circumstances.”

[Transcript PN26 - PN28]

Also at Transcript PN494 - 501:

“THE DEPUTY PRESIDENT: In the scales, as I'm required to do. Can I just also ask you - your primary submission is for reinstatement - - -

MR HAMMOND: Yes.

THE DEPUTY PRESIDENT: - - - and in the alternative compensation. Why do you say that reinstatement is more appropriate than compensation, given all of the history in this matter?

MR HAMMOND: I hope I answer this correctly but I don't say that it's more appropriate. It is Mr Ocampo's primary relief sought and I've got no instructions to abandon that primary relief. However, I'm very mindful of the practical complications and indeed extreme difficulties that the respondent may have in fulfilling reinstatement in circumstances where there is evidence of Mr Ocampo's incapacity to fulfil his role.

THE DEPUTY PRESIDENT: I mean, you made the point that the hospital is a health provider. It's also a business, of course, and these things need to be weighed up.

MR HAMMOND: Yes. So in the alternative, in my submission I think it would be appropriate to consider compensation payable pursuant to section 392 in the order of - as I said in the opening - 10 to 12 weeks.

THE DEPUTY PRESIDENT: Yes, and where do you get the 10 to 12 weeks from?

MR HAMMOND: It's really simply an assessment based on the maximum being 26 weeks and the period of employment that Mr Ocampo has endured with the respondent. It's really just a figure that appeared appropriate particularly, I suppose, in light of the decision in Lazar. It is referred to in Mr Ocampo's submissions. I can hand up a copy if it's necessary.”

[54] I find that reinstatement is not appropriate and that compensation is the appropriate remedy to provide a measure of justice to the Applicant in accordance with s.390(3)(b).

Compensation

[55] Section 392 of the Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered provides:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[56] The method for calculating compensation under s.392 of the Act was recently dealt with by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge,[2013] FWCFB 431 (Bowden). In that decision the Full Bench set out the order in which the criteria and other factors should be applied, taking into account authority under the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket, (1998) 88 IR 21 and Ellawala v Australian Postal Corporation, Print S5109 (Ellawala). I have adopted the methodology utilised in Bowden in determining the amount of a payment of compensation.

[57] I will now consider each of the criteria in s.392 of the Act.

Remuneration that would have been received: s.392(2)(c)

[58] The Applicant’s remuneration with the Respondent was $938.30 per week at the time of dismissal. (Exhibit B1, Annexure 80)

[59] I now determine the period of time the Applicant would have remained employed by the Respondent, or would have likely remained employed with the Respondent, had he not been dismissed.

[60] Obviously, this determination is not without difficulty given the Applicant’s medical condition. However, I consider ten weeks is a reasonable estimate.

Remuneration earned - s.392(2)(c)

[61] It was not contested that the Applicant was unemployed. There was some dispute about the level of workers compensation payments and whether these had been received. In any event, I do not consider it appropriate to discount the compensation that would otherwise be awarded.

Income likely to be earned

[62] It is unlikely further income will be earned.

Other matters - s.392(2)(g)

[63] A broad discretion is given to the Commission to consider other matters. In the circumstances, I consider this is a case in which the personal circumstances of the Applicant are a factor that support the awarding of compensation.

Viability - s.392(2)(a)

[64] Given the nature of the employer, an order for compensation will not affect the viability of the business.

Length of Service - s.392(2)(b)

[65] The Applicant had over five years service with the Respondent which does not in my view detract from the order for compensation.

Mitigating efforts: s.392(2)(b)

[66] In considering whether the Applicant has taken steps to mitigate the loss suffered as a result of the dismissal I should take into account whether the Applicant acted reasonably in the circumstances, (Ellawala).

[67] I find that the Applicant’s efforts at mitigation have been made difficult by his medical condition but are not a ground to discount the compensation.

Misconduct: s.392(3)

[68] This was a dismissal based on incapacity. There is no issue about misconduct which would reduce the compensation.

Shock, Distress: s.392(4)

[69] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap: s.392(5)

[70] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the Applicant, or to which the Applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or half the amount of the high income threshold immediately prior to the dismissal.

[71] The high income threshold component is $64,560.

[72] The amount the Applicant would have earned, or to which the Applicant was entitled, for the 26 week period immediately prior to the dismissal was therefore approximately $24,396.

[73] The amount of compensation I will order does not exceed the compensation cap.

[74] I will order the Respondent to pay to the Applicant an amount of $9,383.

Conclusion

[75] I am satisfied that the Applicant was protected from unfair dismissal, and that the dismissal was unfair and a remedy of compensation is appropriate. In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.

[76] An order (PR546703) will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

L. Hammond, solicitor for the applicant.

S. Borrow, solicitor for the respondent.

Hearing details:

2013

Sydney:

November 5.

Written submissions:

Applicant 11 November 2013;

Respondent 13 November.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR546683>